2001 JTR(SC) 576
2001 2 AICLR 345 ; 2001 AIR(SC) 1929 ; 2001 AIR(SCW) 1377 ; 2001 1 ALD(Cri)(SC) 745 ; 2001 42 AllCriC 883 ; 2001 AllMR(Cri)(SC) 736 ; 2001 CriLR 394 ; 2001 2 Crimes(SC) 147 ; 2001 CrLJ 1820 ; 2001 2 EastCrC(SC) 115 ; 2001 1 JCC 235 ; 2001 1 JLJR(SC) 851 ; 2001 4 JT 216 ; 2001 3 PLJR(SC) 18 ; 2001 2 RCR(Cri) 396 ; 2001 3 Scale 27 ; 2001 4 SCC 193 ; 2001 SCC(Cri) 668 ; 2001 KHC 1077 ; 2001 3 Supreme 77
2001(3) Supreme 77
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
R.C. Lahoti and Doraiswamy Raju, JJ.
Mithu Singh -Appellant
versus
The State of Punjab -Respondent
Criminal Appeal No. 673 of 1992
Decided on 27-3-2001
Counsel for the Parties :
For the Appellant : O.P. Sharma, Sr. Advocate, K.R. Gupta, R.C. Gubrele, Advocates.
For the Respondent :Rajeev Sharma, Advocate.
IMPORTANT POINT
No inference that the appellant having shared a common intention to cause the death of the deceased old lady with the co-accused can be drawn on the facts of the case. His conviction under Section 302/34 IPC is liable to be set aside. But he is rightly convicted under Section 27 of Arms Act for having an unlicensed pistol by which he used to scare away the people chasing him to apprehend
Act
Referred
:ARMS ACT : S.27
INDIAN PENAL CODE : S.302, S.34
(A) The Arms Act, 1959, Section 27, read with the Indian Penal Code, Sections 302 and 34, forms the statutory basis of the charges in this appeal. Section 27 of the Arms Act penalizes the possession of unlicensed arms, while Section 302 IPC prescribes punishment for murder, which can be attractable jointly with Section 34 IPC when an act is done in furtherance of a common intention shared by multiple accused. The provisions operate in tandem, such that a conviction for murder under Section 302 requires proof of a common intention, and the additional charge under the Arms Act provides a distinct basis for sentencing enhancement regarding the use of an unlicensed weapon in the commission of the offence.
(B) Key legal principles include that a charge under Section 302 with the aid of Section 34 requires proof of a common intention, which must be distinguished from a similar or same intention; an inference of common intention must be drawn with certainty; and the mere presence of an accused at the scene or prior enmity is insufficient to attract liability under Section 34. Furthermore, the recovery of an unlicensed weapon can sustain a conviction under the Arms Act even in the absence of direct examination of all witnesses, provided the evidence supports the recovery.
Facts of the case:
The deceased was killed on 17.8.1985 at her village home by two accused persons armed with .12 bore pistols. One accused fired the fatal shot, and both accused fled the scene but were apprehended by villagers and police. A pistol was recovered from the accused appellant in custody. The deceased had a pre-existing civil and criminal dispute with one of the co-accused concerning a land transaction.
Findings of Court:
The trial court and the High Court convicted both accused under Section 302/34 IPC and Section 27 of the Arms Act. The Supreme Court allowed the special leave petition of the accused appellant challenging his murder conviction, finding that the shared common intention of the co-accused could not be inferred against him, while upholding the Arms Act conviction based on the recovery of the unlicensed pistol.
Issues:
Whether the appellant shared a common intention with the co-accused to cause the death of the deceased, thereby attracting liability under Section 302/34 IPC; and whether the recovery of the unlicensed pistol supports a conviction under Section 27 of the Arms Act.
Ratio Decidendi:
Liability under Section 302 read with Section 34 cannot be predicated on mere presence, prior enmity, or knowledge that the co-accused was armed; there must be a clear inference of a shared common intention, which was absent here. Conversely, the Arms Act conviction is sustainable on the clear evidence of recovery of an unlicensed firearm used in the incident.
Result:
The appeal is partly allowed. The conviction under Section 302/34 IPC is set aside, but the conviction under Section 27 of the Arms Act is maintained. The appellant is released on bail with the fine refunded, and the arms sentence already served is acknowledged.
(A) The Arms Act, 1959, Section 27, read with the Indian Penal Code, Sections 302 and 34, forms the statutory basis of the charges in this appeal. Section 27 of the Arms Act penalizes the possession of unlicensed arms, while Section 302 IPC prescribes punishment for murder, which can be attractable jointly with Section 34 IPC when an act is done in furtherance of a common intention shared by multiple accused. The provisions operate in tandem, such that a conviction for murder under Section 302 requires proof of a common intention, and the additional charge under the Arms Act provides a distinct basis for sentencing enhancement regarding the use of an unlicensed weapon in the commission of the offence.
(B) Key legal principles include that a charge under Section 302 with the aid of Section 34 requires proof of a common intention, which must be distinguished from a similar or same intention; an inference of common intention must be drawn with certainty; and the mere presence of an accused at the scene or prior enmity is insufficient to attract liability under Section 34. Furthermore, the recovery of an unlicensed weapon can sustain a conviction under the Arms Act even in the absence of direct examination of all witnesses, provided the evidence supports the recovery.
Facts of the case:
The deceased was killed on 17.8.1985 at her village home by two accused persons armed with .12 bore pistols. One accused fired the fatal shot, and both accused fled the scene but were apprehended by villagers and police. A pistol was recovered from the accused appellant in custody. The deceased had a pre-existing civil and criminal dispute with one of the co-accused concerning a land transaction.
Findings of Court:
The trial court and the High Court convicted both accused under Section 302/34 IPC and Section 27 of the Arms Act. The Supreme Court allowed the special leave petition of the accused appellant challenging his murder conviction, finding that the shared common intention of the co-accused could not be inferred against him, while upholding the Arms Act conviction based on the recovery of the unlicensed pistol.
Issues:
Whether the appellant shared a common intention with the co-accused to cause the death of the deceased, thereby attracting liability under Section 302/34 IPC; and whether the recovery of the unlicensed pistol supports a conviction under Section 27 of the Arms Act.
Ratio Decidendi:
Liability under Section 302 read with Section 34 cannot be predicated on mere presence, prior enmity, or knowledge that the co-accused was armed; there must be a clear inference of a shared common intention, which was absent here. Conversely, the Arms Act conviction is sustainable on the clear evidence of recovery of an unlicensed firearm used in the incident.
Result:
The appeal is partly allowed. The conviction under Section 302/34 IPC is set aside, but the conviction under Section 27 of the Arms Act is maintained. The appellant is released on bail with the fine refunded, and the arms sentence already served is acknowledged.
.
JUDGMENT
R.C. Lahoti, J.-Mithu Singh, the accused appellant, and one Bharpur singh were tried on charge under Section 302/34 I.P.C. for the murder of Gurdial Kaur on 17.8.1985 at Village Bhame Kalan, District Bhatinda. In view of unlicensed pistols having been recovered from each one of them they were also charged under Section 27 of the Arms Act, 1959. On trial the Session Judge, Bhatinda found both the accused persons guilty of the offences charged. Each of them was sentenced to life imprisonment with a fine of Rs.1,000/- under Section 302/34, I.P.C. They were also sentenced to two years rigorous imprisonment each under Section 27 of the Arms Act. Both the accused persons preferred appeals before the High Court of Punjab which have been dismissed. Special leave petitions were filed by both of them before this court. On 19.7.1991 the SLP filed by Bharpur Singh was directed to be dismissed by this court. However, the petition filed by Mithu Singh, the appellant has been entertained and leave granted.
2. According to the prosecution, Gurdial Kaur, the deceased, is said to have executed a sale deed of a piece of land in favour of late Gurdev Singh, the father of accused Bharpur Singh. Civil litigation for cancellation of the sale deed was pending between Gurdial Kaur and accused Bharpur Singh and his brothers. The enemity so erupted had also resulted in some criminal litigation between the parties. Thus, admittedly, there were strained relations between Bharpur Singh and the deceased, Gurdial Kaur.
3. On 17.8.1985, at about 2.30 p.m., Gurdial Kaur was sitting on a cot near her house. The two accused persons each armed with a .12 bore pistol came to the house of Gurdial Kaur. They shouted "Budhiya Takri Ho Ja, Tu Sanu Bohat Tang Kita Hai" (Old lady be strong. You have already harassed us enough). Bharpur Singh fired a shot with his pistol hitting the deceased on her left flank. She fell down on the cot and died immediately. Mukhtiar Singh, PW.11, who has a house adjoining the house of Gurdial Kaur and one Jagtar Singh saw the incident. They raised an alarm whereupon the two accused persons took to their heels. They were chased by some villagers. On way, they were joined by some police party also. Finding the police and the village people chasing them, the two accused persons turned and started running in directions opposite to each other. However, the party led by Sub Inspector Santokh Singh, PW.12 caught hold of Bharpur Singh. The Party led by ASI Gurcharan Singh apprehended Mithu Singh, appellant. From his possession, a pistol, Exhibit P-6 was recovered. Mukhtiar Singh, PW.11, lodged an F.I.R. The usual investigation followed and the accused persons were challaned.
4. In this appeal, we are concerned with the legality or otherwise of the conviction of Mithu Singh, the accused appellant before us, under Section 302/34, I.P.C and Section 27 of the Arms Act.
5. The prosecution does not attribute any overt act to the accused appellant Mithu Singh. The totality of the circumstances found against him is that he came to the house with Bharpur Singh, the co-accused, he was also armed with a pistol and after Bharpur Singh fired a single shot which proved to be fatal, both took to their heels. The allegation that Bharpur Singh and Mithu Singh belong to one party faction, is not based on any concrete fact wherefrom such an inference may be drawn by the court and, therefore, does not go beyond being merely a ipse dixit of the witnesses. Therefore, the question arises, whether an inference, as to Mithu Singh having shared a common intention to cause the death of deceased Gurdial Kaur with the co-accused Bharpur Singh, can be drawn?
6. To substantiate a charge under Section 302 with the aid of Section 34, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of the both. Common intention has to be distinguished from same or similar intention. It is true that it is difficult, if not impossible, to collect and produce direct evidence in proof of the intention of the accused and mostly an inference as to intention shall have to be drawn from the acts or conduct of the accused or other relevant circumstances, as available. An inference as to common intention shall not be readily drawn; the culpable liability can arise only if such inference can be drawn with a certain degree of assurance. At the worst Mithu Singh, accused appellant, knew that his co-accused Bharpur Singh was armed with a pistol. The knowledge of previous enemity existing between Bharpur Singh and the deceased can also be attributed to Mithu Singh. But there is nothing available on record to draw an inference that the co-accused Bharpur Singh had gone to the house of the deceased with the intention of causing her death and such intention was known to Mithu Singh, much less shared by him. Simply because Mithu Singh was himself armed with a pistol that would not necessarily lead to an inference that he had also reached the house of the deceased or had accompanied the co-accused Bharpur Singh with the intention of causing the death of Gurdial Kaur. In our opinion, an inference as to Mithu Singh accused appellant, having shared with Bharpur Singh a common intention of causing the murder of deceased Gurdial Kaur cannot be drawn. His conviction under Section 302/34, IPC cannot be sustained and must be set aside.
7. So far as the offence under Section 27 of Arms Act is concerned, we do not find any reason to doubt the recovery of pistol from his possession when he was apprehended on being chased by the villagers. It is true that ASI Gurcharan Singh has not been examined as he had died before the commencement of trial. However, there is no reason to disbelieve the statement of panch witness Babusingh PW10, who is also a village panch, deposing to the recovery of the pistol from the possession of Mithu Singh. The pistol was fired to scare away the people chasing him to apprehend him. As the pistol is not shown to be licensed, and was also used, his conviction under Section 27 of the Arms Act cannot be found fault with.
8. The appeal is party allowed. Conviction of Mithu Singh, the accused appellant, under Section 302/34 IPC is set aside. The amount of fine of Rs.1,000/-, if realised from him, shall be refunded to him. In so far as conviction under Section 27 of the Arms Act and the sentence of two years R.I. is concerned, the same are maintained. The appellant has already served out that sentence. He is on bail. He need not surrender to the bail bonds which shall stand discharged.
(N.K.R.) Appeal partly allowed.
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